S T A T E   O F   N E W   Y O R K
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                                  3895

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                            January 28, 2015
                               ___________

Introduced by M. of A. WRIGHT -- read once and referred to the Committee
  on Labor

AN ACT to amend the labor law, in relation to unjust dismissal

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The labor law is amended by adding a new  article  17-A  to
read as follows:
                               ARTICLE 17-A
                          UNJUST DISMISSAL ACT
SECTION 480. DEFINITIONS.
        481. DISMISSAL PROCEDURE.
        482. FILING OF COMPLAINT.
        483. APPOINTMENT OF ARBITRATOR.
        484. HEARING.
        485. REMEDY.
        486. NOTICE.
  S 480. DEFINITIONS. WHEN USED IN THIS ARTICLE:
  1.  THE TERM "EMPLOYEE" MEANS ANY PERSON WHO AT THE TIME OF HIS OR HER
DISMISSAL HAS BEEN EMPLOYED FOR NOT LESS THAN FIFTEEN HOURS  A  WEEK  OR
TWELVE CONSECUTIVE MONTHS FOR AN EMPLOYER. SUCH TERM SHALL NOT INCLUDE:
  (A)  A  MANAGERIAL  EMPLOYEE  OR A PERSON WHO HAS A WRITTEN EMPLOYMENT
CONTRACT FOR NOT LESS THAN TWO YEARS AND  WHOSE  CONTRACT  REQUIRES  NOT
LESS THAN SIX MONTHS NOTICE OF TERMINATION; OR
  (B)  A MEMBER OF A GROUP OF EMPLOYEES SUBJECT TO A COLLECTIVE BARGAIN-
ING AGREEMENT WHICH INCLUDES BINDING ARBITRATION AS PART OF THE CONTRACT
GRIEVANCE PROCESS.
  2. THE TERM "EMPLOYER" MEANS ANY PERSON OR ORGANIZATION  THAT  EMPLOYS
AT LEAST FIFTEEN PERSONS.
  3. THE TERM "UNJUST DISMISSAL" SHALL MEAN ANY DISMISSAL OF AN EMPLOYEE
BY AN EMPLOYER WITHOUT CAUSE, OR IF ANY OF THE FOLLOWING WAS A DETERMIN-
ING FACTOR IN SUCH DISMISSAL:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04795-01-5
              

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  (A) THE EMPLOYEE'S AGE, SEX, RACE, RELIGION OR NATIONAL ORIGIN;
  (B)  THE  EMPLOYEE'S  EXERCISE  OF  RIGHTS  GUARANTEED  BY THE FEDERAL
CONSTITUTION;
  (C) THE EMPLOYEE'S REFUSAL TO ACT  IN  A  MANNER  THAT  WOULD  VIOLATE
PUBLIC POLICY AS EXPRESSED IN LAW OR ADMINISTRATIVE REGULATIONS;
  (D)   THE  EMPLOYEE'S  OFF-DUTY  CONDUCT  WHICH  BEARS  NO  REASONABLE
RELATIONSHIP TO THE EMPLOYEE'S JOB PERFORMANCE; OR
  (E) THE EMPLOYEE'S REFUSAL TO PERFORM ANY TASK WHICH POSES A THREAT OF
SERIOUS INJURY OR DEATH.
  S 481. DISMISSAL PROCEDURE. ANY EMPLOYER WHO  DISCHARGES  AN  EMPLOYEE
SHALL GIVE SUCH EMPLOYEE WRITTEN NOTICE WITHIN FIFTEEN DAYS OF DISMISSAL
OF  ALL  REASONS  FOR  HIS  OR  HER DISMISSAL AND OF HIS OR HER RIGHT TO
REQUEST ARBITRATION PURSUANT TO THIS ARTICLE.
  S 482. FILING OF COMPLAINT. 1. IF  AN  EMPLOYER  FAILS  TO  PROVIDE  A
DISCHARGED  EMPLOYEE  WITH A WRITTEN NOTICE OF THE REASONS FOR DISMISSAL
PURSUANT TO SECTION  FOUR  HUNDRED  EIGHTY-ONE  OF  THIS  ARTICLE,  SUCH
DISCHARGED  EMPLOYEE  MAY  FILE  A WRITTEN COMPLAINT WITH THE EMPLOYMENT
RELATIONS BOARD, AS CREATED BY SECTION SEVEN HUNDRED TWO OF  THIS  CHAP-
TER,  NOT LESS THAN FORTY-FIVE DAYS NOR MORE THAN ONE HUNDRED DAYS AFTER
DISCHARGE OF THE EMPLOYEE.
  2. ANY EMPLOYEE WHO BELIEVES HE OR SHE WAS UNJUSTLY DISMISSED MAY FILE
A WRITTEN COMPLAINT WITH THE STATE MEDIATION BOARD NOT  LATER  THAN  ONE
HUNDRED DAYS AFTER THE RECEIPT OF THE WRITTEN NOTICE OF DISMISSAL.
  THERE  SHALL  BE  A  TWENTY-FIVE  DOLLAR  FILING  FEE  CHARGED FOR ANY
COMPLAINT FILED PURSUANT TO THIS SECTION.
  S 483. APPOINTMENT OF ARBITRATOR. 1. UPON THE FILING  OF  A  COMPLAINT
PURSUANT  TO  SECTION  FOUR HUNDRED EIGHTY-TWO OF THIS ARTICLE THE STATE
MEDIATION BOARD SHALL SELECT  WITHIN  TEN  DAYS  OF  THE  RECEIPT  OF  A
COMPLAINT  THREE  IMPARTIAL,  COMPETENT  AND REPUTABLE ARBITRATORS TO BE
NOMINEES TO ARBITRATE SUCH COMPLAINT.  THE NAMES OF THE THREE ARBITRATOR
NOMINEES SHALL BE DELIVERED TO BOTH THE EMPLOYER AND THE EMPLOYEE. AFTER
RECEIPT OF THE LIST OF NOMINEES, THE EMPLOYER AND  EMPLOYEE  SHALL  HAVE
FIVE  DAYS  DURING  WHICH  THEY  MAY  EACH OBJECT TO ONE OF THE NOMINEES
SELECTED BY THE STATE MEDIATION BOARD. THE STATE MEDIATION  BOARD  SHALL
SELECT  AN  ARBITRATOR  FROM  AMONG  THE  NOMINEES  WHICH  HAVE NOT BEEN
OBJECTED TO.
  2. THE ARBITRATOR SHALL SET THE TIME, DATE AND PLACE FOR  THE  HEARING
OF  THE  FILED  COMPLAINT.  SUCH HEARING SHALL OCCUR NOT LESS THAN FIFTY
DAYS AFTER THE FILING OF THE COMPLAINT AND THE PARTIES SHALL BE NOTIFIED
OF THE TIME, DATE AND PLACE OF THE HEARING  AT  LEAST  TWENTY-FIVE  DAYS
PRIOR  TO  THE  HEARING  DATE.  FAILURE  TO APPEAR AT THE HEARING BY THE
EMPLOYEE OR EMPLOYER SHALL RESULT IN DISMISSAL OR DEFAULT, RESPECTIVELY,
UNLESS THERE IS A JUSTIFIABLE EXCUSE.
  S 484. HEARING. 1. THE PROCEEDINGS  BEFORE  THE  ARBITRATOR  SHALL  BE
INFORMAL.  THE  ARBITRATOR MAY CONDUCT THE HEARING IN WHATEVER MANNER HE
OR SHE REASONABLY BELIEVES WILL PERMIT THE  FULL  AND  MOST  EXPEDITIOUS
PRESENTATION OF THE EVIDENCE AND ARGUMENTS OF THE EMPLOYER AND EMPLOYEE.
THE RULES OF EVIDENCE OF PROOF SHALL NOT APPLY.
  2. THE BURDEN OF PROOF SHALL REST WITH THE EMPLOYER.
  S  485.  REMEDY.  1.  IF THE ARBITRATOR DETERMINES THAT THE EMPLOYEE'S
DISMISSAL WAS UNJUST, THE ARBITRATOR MAY  ORDER  REINSTATEMENT  AND  MAY
AWARD THE EMPLOYEE LOST EARNINGS.
  2.  THE  RESPECTIVE  PARTIES  SHALL  BEAR  ALL  EXPENSES ACCRUING FROM
OUTSIDE ASSISTANCE. HOWEVER, IF  THE  EMPLOYEE'S  CLAIM  IS  UPHELD  ALL
EXPENSES SHALL BE PAID BY THE EMPLOYER.

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  3.  IF  THE  ARBITRATOR  FINDS THAT THE EMPLOYEE'S CLAIM IS FRIVOLOUS,
VEXATIOUS OR MADE FOR THE PURPOSES OF HARASSMENT, THE EMPLOYEE SHALL  BE
LIABLE FOR ALL OF THE EMPLOYER'S REASONABLE COSTS.
  S  486.  NOTICE. ALL EMPLOYERS SHALL CONSPICUOUSLY POST A COPY OF THIS
ARTICLE OR A SUMMARY THEREOF IN AN AREA  ACCESSIBLE  TO  ALL  EMPLOYEES.
FAILURE  TO  POST  SUCH  NOTICE  SHALL  CONSTITUTE GROUNDS FOR AN UNJUST
DISMISSAL COMPLAINT.
  S 2. This act shall take effect on the sixtieth  day  after  it  shall
have  become  a  law  provided, however, the commissioner of labor shall
immediately promulgate all rules and regulations necessary to carry  out
the provisions of this act.